No, Your FOIA Request Cannot Wait ‘Until This Emergency Is Over’

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May 12, 2020

Credit...Nicholas Konrad

In the more than half-century since President Lyndon Johnson signed the nation’s first Freedom of Information Act into law, the measure has proved to be a valuable tool for taxpayers and the press to keep a check on dealings by public officials that would otherwise be shrouded in secrecy.

Freedom of information laws vary at the federal, state and municipal levels and are far from perfect. Requests may take years to fill and sometimes reveal little, particularly after redactions. Most federal and state agencies have broad leeway to interpret what will satisfy a request and when. But in principle, and generally in practice, the spirit of the laws gives the public, the press and even lawmakers themselves equal access to information.

Unfortunately, far too many agencies have also interpreted the arrival of the coronavirus pandemic and necessary shelter-in-place orders as a justification for either further delaying or failing entirely to respond to FOIA requests. But local and federal government agencies continue to operate, albeit under altered circumstances, and the delays degrade the public’s trust in elected officials.

Taxpayers have a right to know how and where their money is being spent in the efforts to buy ventilators, masks and other essential supplies — and whether agencies are being forthright about their efforts. While the work of government continues, citizens are losing a fundamental right to transparency. That’s a threat to good government and democracy.

The worst offenders have stopped complying with freedom of information requests outright, citing the difficulties of doing so during the health emergency. According to communications culled by The New York Times, the governors of Pennsylvania and Hawaii have advised state agencies that they are not required to respond to such requests until their offices return to normal operations — whenever that may be. Hawaii’s procurement office will not disclose any contracts valued at over $25,000, representing a vast majority of the state’s dealings.

Gov. Gina Raimondo of Rhode Island is allowing agencies to extend disclosure requirements by as much as 40 business days. A spokeswoman for the governor told The Times that her regular appearances before the local press are a sufficient stand-in for normal compliance. That’s absurd. No news conference can replace timely disclosure of official written state communications and contracts.

In other cases, governors have given agencies leeway to comply with FOIA requests as they see fit, such as in Maryland and in Michigan, where Gov. Gretchen Whitmer issued an order allowing compliance to take “as long as the public body deems necessary” or until June 5, when the order expires. Texas’ governor, Greg Abbott, ruled that agencies are exempt from a legal requirement to respond to FOIA requests within 10 business days until physical offices are open and fully staffed. That could amount to months of delays and create a considerable backlog when agencies are back in full force.

A lawyer for the New Hampshire Department of Health and Human Services told The Times in response to a coronavirus-related FOIA request that the agency “will not be able to begin to work on your request until this emergency is over.” After an inquiry by The Times, a spokesman for the New Hampshire governor, Chris Sununu, said the agency was acting on its own, and it has since said it will work to fulfill the request.

“That’s happening all over the place,” said Michael Morisy, chief executive of the nonprofit news website Muckrock, which closely monitors FOIA matters. “Where we’re seeing problems is individual agencies: A huge number of them are trying to skirt disclosure during Covid.”

The federal government is no different, treating the decades-old statute as advisory rather than law. Organizations from the Air Force to the F.B.I. to the Department of Health and Human Services and the Federal Emergency Management Agency are either changing policies regarding FOIA requests or are not responding to them.

The State Department told a BuzzFeed reporter that it was suspending FOIA compliance indefinitely. Four U.S. senators last week pressed the federal Office of Information Policy about the state of FOIA during the pandemic, saying some agencies “may have created unnecessary burdens on requesters.” The liberal watchdog American Oversight has sued the Health and Human Services Department for failing to respond to FOIA requests.

In the midst of a pandemic, it is reasonable to expect delays in processing public records requests and even incomplete responses, especially where public entities may not have access to physical files or other resources. But work-from-home orders have demonstrated that government can carry on remotely. New data, contracts and communications are being created digitally every day that would certainly fall under public access laws. Fulfilling FOIA requests can be grueling grunt work, but such labor should be deemed essential during the pandemic.

Far too often officials have sought to alter or disregard FOIA laws to obscure government conduct or mismanagement. Particularly as reports emerge of profligate state spending on protective masks and conflicting accounts of the federal response to the pandemic, Americans deserve to see freedom of information laws obeyed, not trampled.